OP No. 26757 of 2000 (I)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **OP.No. 26757 of 2000 (I) -------------------------** **PETITIONERS:** **------------** **1. MOHAMMED, S/O. KADEKKAR ABDUL RAHIMAN RESIDING AT KADEKKAR HOUSE, KUBANOOR VILLAGE, P.O., BEKUR, KASARAGOD DISTRICT** **2. ARABI, S/O. KADEKKAR ABDUL RAHIMAN, RESIDING AT -DO-DO3. YUSUF, S/O. KADEKKAR ABDUL RAHIMAN, RESIDING AT -DO-DO4. ABOOBACKER, S/O. KADEKKAR ABDUL RAHIMAN, RESIDING AT -DO-DO5. HALIMA, W/O. ABDUL RAZAK, RESIDING AT -DO-DO6. SAFIYA, W/O. ABDULLA KUNHI, RESIDING AT -DO-DO7. THAHIRA, W/O. ABDUL KHADER, RESIDING AT -DO-DO-** **BY ADVS.SRI.S.V.BALAKRISHNA IYER (SR.) SRI.P.B.KRISHNAN GOVERNMENT PLEADER** **RESPONDENTS:** - **------------** **1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM** **2. THE COMMISSIONER OF LAND REVENUE, THIRUVANANTHAPURAM** **3. THE REVENUE DIVISIONAL OFFICER, KASARAGOD, AT KANHANGAD** **4. THE SPECIAL TAHSILDAR (LA), MANJESHWAR, KASARAGOD.** **5. KUNHALEEMA, W/O. MOOSA, RESIDING AT URMIJALU HOUSE, KUBANOOR VILLAGE, P.O. BAKUR KASARAGOD.** **6. BEEFATHIMA ALIAS BEEBU, W/O. KUNHAHAMMED, CHAROLI HOUSE, KAYYAR VILLAGE AND POST, KASARAGOD.** **....2** ## **OP.No. 26757 of 2000 (I)** **-2-** **7. NABEEZA, W/O. ABDUL RAHIMAN, RESIDING AT MANNANGUI HOUSE UPPALLA VILLAGE AND POST, KASARAGOD.** **8. MOHAMMED KUNHI, S/O. MOOSA HAJI, BALLAPPA HOUSE, P.O. BEKUR, KASARAGOD TALUK (VIA) UPPALLA.** **ADDITIONAL R9 IMPLEADED** **ADDL R9 YOUSUF MASTER K.A., S/O. M.B. ANDUNHI, KALLAKKATTA HOUSE KUBANOOR VILLAGE, P.O. BEKUR, KASARAGOD TALUK AND DISTRICT.** **ADDITIONAL R9 IMPLEADED AS PER ORDER DATED 30.06.2005 IN I.A. NO.4942/2004** **R5 TO R8 BY ADV. SRI.P.K.MUHAMMED** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23-05-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP.No. 26757 of 2000 (I)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** - **P1: TRUE COPY OF THE ORDER OF ASSIGNMENT ON REGISTRY ISSUED TO KAIJUMMA DATED 25.05.1978** - **P2: TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT IN A.A. NO.16/1998 DATED 30.11.1998** - **P3: TRUE COPY OF THE ORDER NO.D.DIS 6525/99/LRJ2 DT. 8.8.2000, PASSED BY 2ND RESPONDENT, SETTING ASIDE EXT.P2 ORDER.** ## **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------O.P. No. 26757 of 2000 (I) -----------------------------------------Dated this the 23[rd] day of May, 2016 ## **J U D G M E N T** The petitioners are aggrieved with Ext.P3 order passed in revision, affirming the assignment made as per Ext.P1 to the mother of respondents 5 to 8. The additional 9[th] respondent is the assignee of respondents 5 to 8. 2. The assignment made as per Ext.P1, to the mother of respondents 5 to 8, was challenged by the mother of the petitioners, after 20 years, before the R.D.O., which ended in the assignment being set aside by Ext.P2 order. A revision filed by the predecessor-in-interest and respondents 5 to 7, reversed the order in appeal as per Ext.P3. The revisional order noticed the fact that the R.D.O. had not ## **O.P. No. 26757/2000** **-2-** condoned the delay and hence, no order could have been passed in the appeal itself. On the short ground, the appellate order was set aside affirming the assignment under Ext.P1. On admission of the above original petition, a status quo order regarding possession was directed to be maintained until further orders on 19.09.2000 in C.M.P. No.44671/2000. Subsequently, the interim order dated 19.09.2000 was modified and confined for a period of one month from 30.06.2005. 3. A further application was filed by the 2[nd] petitioner as I.A. No.18940/2005 seeking injunction against alienation and alteration of the nature and character of the property. This Court, in the I.A., passed the following order dated 04.01.2006: “The land covered by Ext.P1 shall not be assigned to 3[rd] parties. Any construction made therein will be at the ## **O.P. No. 26757/2000** **-3-** risk of the concerned respondent and subject to the result of the original petition.” 4. The background facts to be noticed are that the mother of the petitioners one Beebi purchased the tenancy right of 0.70 acres in Re-Survey No.81/4 of Kubanoor Village as per registered assignment deed dated 11.10.1962. The Pattadar of the property was the husband of Beebi, one Kedekkar Abdul Rahiman. Subsequent to the assignment deed, the Kerala Land Reforms Act, 1963, came into force and the jenm right was purchased by Beebi from Abdul Rahiman, through the Land Tribunal. This was said to be 'wargh' land, where the tenant and then the assignee Beebi were carrying out cultivation. Adjacent to the said 'wargh' land was 0.77 acres of 'kumki' land in R.S. No.107/1A 1A of the same village ('kumki' lands are those lands over which the 'wargh' holder has a preferential right ## **O.P. No. 26757/2000** **-4-** for assignment). The said extent, being Government land, is said to have been used by the occupier of the 'wargh' land, the predecessors-in-interest of the petitioners, from time immemorial as 'kumki' lands. 5. The father of respondents 5 to 7 one Mohammed @ Abba was an agricultural worker of Abdul Rahiman, who is said to have been permitted to erect a residential building in the 'kumki' land. The said Mohammed @ Abba, applied in his wife's name for assignment of 77 cents of land, allegedly without the knowledge of the 'wargh' holder; which assignment was made as per Ext.P1. The 'wargh' holder was made aware of the said assignment, only when the assignee of Ext.P1 attempted to construct a road through the 77 cents of property, on the strength of the assignment. The 'wargh' holder then filed an appeal before the R.D.O., which was allowed as per Ext.P2. Ext.P2 had ## **O.P. No. 26757/2000** **-5-** looked into the facts and found that the 'wargh' holder was entitled to assignment of 'kumki' lands, for which an application had been made by the predecessor-in-interest of the petitioners as early as in 1964, which was registered as DR 575/64-65 dated 12.08.1964. 6. The learned Senior Counsel appearing for the petitioners specifically takes me through Ext.P2 order and the findings on facts rendered therein and contend that the preferential right of the petitioners' family being established, it was not proper for the revisional authority to have interfered with the appellate order merely on the ground that there was no order of delay condonation. It is submitted that Ext.P2 order only remanded the matter for fresh consideration, since the application filed by the 'wargh' holder i.e: DR 575/6465, re-numbered as L.A. 43/74/Kubanoor, remained ## **O.P. No. 26757/2000** **-6-** pending before the authority, without consideration. 7. The learned Senior Counsel would also rely on the following decisions, **Parameswara Bhat v. Tahsildar, Kasaragod and others - 1967 KLT 766** , **State of Mysore and others v. K. Chandrasekhara Adiga and another - AIR 1976 SC 853** and **Govinda Batta v. Shankaranarayana Bhatta - 1990 (1) KLT (SN) 20** , to contend that the preferential right of the petitioners under Rule 7A of the Kerala Land Assignment Rules (for brevity 'Rules') cannot be lightly interfered with by the respondents. 8. **Parameswara Bhat** (supra) found that the rights of a kumkidar conferred by the Boards Standing Orders 15 (Madras) has been judicially recognised by the Madras High Court and has been given statutory force by virtue of Section 9(3) of the Kerala Government Land Assignment Act, 1960. It was held that persons **-7-** ## **O.P. No. 26757/2000** who have either kumki privileges or/and have been in possession bona fide making improvements will have a preferential right, which creates valuable incidents. The declaration of law in **K.C. Adiga** (supra), so far as an executive fiat not being competent to override statutory rights, though not relevant to the facts of the present case, all the same reinforces the statutory right and preference conferred on a kumkidar. The Kerala Government Land Assignment Act and the Rules of 1964; specifically Rule 7A , provides for assignment of lands extending to two chains from the 'wargh' lands to its holder who has a preferential claim by virtue of 'kumki' privileges; provided an application is made before 06.12.1968. 9. A reading of Ext.P2 order would indicate that factually the land adjacent to the 'wargh' land in R.S. No.81/4 and having an extent of 0.77 acres, comprised in R.S. No.107/1A 1A is found to be kumki lands, which ## **O.P. No. 26757/2000** **-8-** were also found to be in the actual possession of the predecessors-in-interest of the petitioners. The application made by the predecessors-in-interest of the petitioners having been kept pending for all these years, the appellate authority had also entered into a finding that the portion of land assigned to the predecessor-in-interest of respondents 5 to 7 is within the extent assignable as kumki land under Rule 7A of the Rules 10. The revisional authority has not gone into the facts and has merely set aside the order of the appellate authority on the ground that no order is seen to have been made with respect to the delay occasioned, which is substantial and extends over a period of almost 20 years. It is also to be noticed that Ext.P2 order, after referring to the facts, merely remanded the issue for fresh consideration. ## **O.P. No. 26757/2000** **-9-** 11. In such circumstance, if no consideration of the aspect of delay was made by the appellate authority, then, it would have been proper for the revisional authority to have remanded the matter for fresh consideration of whether the delay was liable to be condoned or not. The revisional authority, in fact, has noticed that Rule 12(1) notice was published and no objection was received. However, the contention of the petitioners is that there was no warrant for disputing the presence of the predecessor-in-interest of respondents 5 to 7 in the kumki lands since the 'wargh' land owners had permitted the construction of a homestead in the kumki land. The predecessor-in-interest of respondents 5 to 7 being agricultural labourers under the Pattadar, the absence of an objection in a notice filed under Rule 12(1) alone cannot stand in the way of the delay being condoned ## **O.P. No. 26757/2000** **-10-** since Sub Rule 4 of Rule 21 of the Rules specifically confer a discretion on the appellate authority to look into whether there are sufficient grounds to condone the delay and exercise discretion insofar as proceeding with the appeal. 12. In the teeth of the contentions above referred, it is only proper that the appellate authority consider the issue of delay, especially since the aforesaid original petition has been pending before this Court for the last 15 years. It is also pertinent that the appellate authority has found that the application filed by the predecessor-in-interest of the petitioners under Rule 7A of the Rules and numbered as DR 575/64-65, re-numbered as L.A. 43/74/Kubanoor, was pending when the assignment at Ext.P1 was made to the predecessor-in-interest of respondents 5 to 7. Discretion having been conferred on the appellate ## **O.P. No. 26757/2000** **-11-** authority, it was only proper that the revisional authority remanded the issue of delay condonation for consideration. It is also to be noticed that the authority, who has to consider the application under Rule 7A of the Rules and who made the assignment as per Ext.P1, is one and the same, i.e., the 4[th] respondent, and more diligence should have been exercised in making assignment of lands on which there was pending an application for exercise of 'kumki' privileges. 13. Having found the revisional order to be bad, the issue to be considered now is as to whether the matter has to be remanded to the appellate authority for consideration of the aspect of delay or the matter should be sent to the original authority, i.e., the 4[th] respondent, who would have to consider the competing claims made under Rule 7 & 7A. In considering this aspect, what is relevant is the status quo regarding the ## **O.P. No. 26757/2000** **-12-** property ie: the actual possession being with the petitioners or the respondents. This is so, since, if the property is in the possession of the petitioners then definitely the original authority could be directed to consider the applications made for assignment under Rule 7A and under Rule 7(1) of the Rules, together and pass orders. However, if the possession is with the respondents, then necessarily the aspect of delay would have to be considered by the R.D.O. 14. To understand who is in possession, one has to again look at the orders passed, in the ensuing 16 years, when the original petition was pending here. As was noticed, by order dated 30.06.2005, the interim order regarding status quo of possession, obtained by the petitioners, was restricted to one month from 30.06.2005. The same has not been revived after its expiry. The petitioners have chosen to file two ## **O.P. No. 26757/2000** **-13-** applications numbered as I.A. No.18940/2005 and I.A. No. 4942/2004 respectively for injunction and impleading of the additional 9[th] respondent. I.A. No.18940/2005 seeks for injunction restraining respondents 5 to 8 and the additional respondent no.9 from committing any acts of waste or inducting any strangers into the 0.77 acres in R.S. No.107/1A 1A of Kubanoor Village and from changing the nature and character of the property. The interim order in the said I.A. dated 04.01.2006 has been extracted earlier. Hence, it has to be assumed that, as of now, the possession is with respondents 5 to 9. This is not to be taken as a finding on facts, since, this Court is only looking at the records of the original petition to make an order of remand. In such circumstance, it is only proper that the R.D.O., the appellate authority, consider the aspect of delay. ## **O.P. No. 26757/2000** **-14-** 15. The revisional order at Ext.P3 is set aside and the order of the R.D.O. at Ext P2 is also set aside. It is made clear that Ext.P2 is set aside only to facilitate reconsideration and the same need not be taken as this court having interfered with the factual findings in Ext.P2. The R.D.O. shall issue notice to the parties, including the petitioners and respondents 5 to 9, and consider the matter expeditiously. It is made clear that this Court has not made any observations as to the findings of facts in Ext.P2 order, which would have to be considered by the R.D.O. only after consideration of the delay condonation. The writ petition would stand disposed of with the above directions. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 24/5/16